Larry P. Gaitens, Lucchino, Gaitens & Hough, Pittsburgh, for appellant.
Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Charles W. Johns, Asst. Dist. Attys., Pittsburgh, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Manderino and Packel, JJ. Manderino, J., filed a dissenting opinion. Nix, J., did not participate in the consideration or decision of this case.
Walter Hall, Jr., was indicted for possession of a controlled substance and for possession of a controlled substance with intent to deliver in violation of the Act of April 14, 1972, P.L. 233, 35 P.S. Section 780-101 et seq. He filed a pretrial motion to suppress the evidence of the contraband he allegedly possessed. Following an evidentiary hearing, the trial court granted the motion. The Commonwealth appealed to the Superior Court which reversed the order of the trial court. We granted Hall's petition for allowance of appeal.
The facts as established by the testimony at the suppression hearing are these:
At approximately 8:45 p.m. on October 3, 1974, three police officers of the City of Pittsburgh, Terrance O'Leary, Joseph Joiner and Greg Edwards, in civilian dress, were patrolling in an unmarked automobile in the 600 block of Herron Avenue, Pittsburgh, an area where narcotic transactions frequently occur. They observed three individuals on the sidewalk near a tavern. The officers made a U-turn some twenty-five feet beyond the bar at an intersection where there was a break in an island dividing the avenue. The officers then double-parked the automobile*fn1 and exited the vehicle "with the intention to confront the [three] individuals." As the officers approached and were about ten (10) feet from the individuals, one of them (Hall) was observed reaching into his pocket and dropping "a white Kleenex ball to the ground." At the same time, Hall began
to cross the avenue where he joined two other individuals standing in front of a second tavern.*fn2
As Hall walked away, Officer O'Leary said "[h]e dropped something" and proceeded to pick up the ball. Officers Joiner and Edwards followed Hall across the street. O'Leary examined the ball and its content, and formulated a belief that the content was heroin.*fn3 He then "yelled" to Joiner and Edwards, who were now on the other side of the street and within two feet of Hall, that Hall had dropped heroin and to arrest him. Hall was placed under arrest and searched. The search resulted in finding marijuana in his right vest pocket. All of the events between the arrival of the police on the scene and the arrest occurred within "a matter of seconds."
The suppression court reasoned the abandonment of the evidence was caused by "coercive action" of the police. It stated: "[h]ere, without any probable cause, three police officers surround[ed] and follow[ed Hall], in effect, illegally restricting his freedom by their threatening actions." Accordingly, it ruled Commonwealth v. Jeffries, 454 Pa. 320, 311 A.2d 914 (1973), was controlling and suppressed the evidence of the heroin and marijuana.
The Superior Court reversed. Essentially, that court ruled no unlawful or coercive police conduct occurred prior to the narcotics being abandoned, and thus Commonwealth v. Jeffries, supra, was inapposite. It also stated: ". . . the narcotics were dropped even before the police had approached ...